Law Commons^™

Regulating Impartiality In Agency Adjudication, Kent H. Barnett

Scholarly Works

Which should prevail—the Take Care Clause of Article II or the Due Process Clause? To Justice Breyer’s chagrin, the majorities in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially …

To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent …

Examining The International Judicial Function: International Courts As Dispute Resolvers, Anna Spain

Publications

This article examines the judicial function of international courts by considering both what it is and what it ought to be. The article identifies and describes two distinct functions - dispute settlement and peace promotion - and explores the tensions that exist in pursuing these two aims. It then introduces a third way of understanding the international judicial function that respects international courts’ traditional role as dispute settlers while allowing for their more engaged and proactive function as peacemakers. This third approach conceptualizes that the role of international courts is to resolve disputes. Doing so requires understanding courts as entities …

Beyond Adjudication: Resolving International Resource Disputes In An Era Of Climate Change, Anna Spain

Publications

This Article examines the role of international adjudication as a mechanism for resolving international disputes and promoting global peace and security in an era of climate change. The central claim is that adjudication has limitations that make it ineffective as a tool for resolving international resource disputes. The Article argues that adjudication is limited due to source and process challenges and it illustrates this claim by reviewing cases adjudicated by the International Court of Justice, the Permanent Court of Arbitration and other international courts and tribunals. Four categories of adjudication limitation emerge: a) cases where the parties refused to submit …

Stipulating The Law, Gary S. Lawson

Faculty Scholarship

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the President. Four Justices strongly challenged the majority’s willingness to accept what amounts to a stipulation by the parties on a controlling issue of law. As a general matter, the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought to …

Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain

Publications

International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This …

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

All Faculty Scholarship

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.

Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel

Scholarly Works

The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …

The Vocation Of International Arbitrators, Catherine A. Rogers

Journal Articles

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers

Journal Articles

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …

Settlement Class Actions And The Limits Of Adjudication, James A. Henderson Jr.

Cornell Law Faculty Publications

This paper is the Comment for a symposium on Individualized Justice, Mass Torts, and "Settlement Class Actions."

A Primer On Resolving Disputes: Lessons From Alternative Dispute Resolution, Harold I. Abramson

Scholarly Works

No abstract provided.

Sources Of Water Iv: Tribal Water Rights, John E. Echohawk

Moving the West's Water to New Uses: Winners and Losers (Summer Conference, June 6-8)

10 pages.

Contains references.

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

Scholarly Works

As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …

Negotiation As A Means Of Quantifying Indian Water Rights, Joseph R. Membrino

The Federal Impact on State Water Rights (Summer Conference, June 11-13)

88 pages.

Contains attachments.

Hybrid Systems: Outline, Harrison C. Dunning

Water Resources Allocation: Laws and Emerging Issues: A Short Course (Summer Conference, June 8-11)

4 pages.

Federal Reserved Water Rights Policy And Improving Federal-State Relations In The West: A Discussion Of The Need For Federal Legislation On Reserved Rights: Outline, Charles B. Roe, Jr.

Water Resources Allocation: Laws and Emerging Issues: A Short Course (Summer Conference, June 8-11)

8 pages.

Is A Compulsory Adjudication Of International Legal Disputes Possible?, Wencelas J. Wagner

Articles by Maurer Faculty

No abstract provided.